Hoshiar Singh and other vs Ram Sarup and another

A.D. Koshal, J.—The facts giving rise to this second appeal by the defendants are no logger in dispute (lthough some of them were controverted by the appellants in the two Court below) and are these. Amin Lal, the father of the plaintiff-respondent, was in occupation of 67 bighas of land situated in village Legha Brahmnan, Tehsil Bhiwani, District Hissar, as a tenant under the owner thereof, namely, Dr. Harnarain who is respondent No 2 before me, from harvest Kharif 1951 to harvest Rabi 1958. After the harvest mentioned last, the plaintiff held 20 bighas of the land above mentioned as tenant under respondent No. 2 right up to the harvest Rabi 1963 However, on the 1st of May, 1959, respondent No 2 obtained an order of ejectment from the entire 6 bighas against Amin Lal, the plaintiffs father, and in execution of that order dispossessed the plaintiff as well as his father from the land on the 10th of July, 1963. The whole land was sold by respondent No. 2 to the appellants for Rs. 25000/- on the 21st of December, 1963.

The plaintiff instituted a suit u/s 50 of the Punjab Tenancy Act for recovery of possession of the 20 bighas from which he had bean wrongfully dispossessed and the same Was decreed on the 28th December 1964 An appeal filed by the vendees defendants in the revenue Courts failed.

The suit out of which this appeal arises, was instituted by the plaintiff for possession of the 67 bighas of land by pre-emption which he claimed on the ground that on the date of the sale he held the land as a tenant under the vendor.

The trial Court decreed the suit in Aspect of the 20 bighas which the plaintiff held as a tenant under respondent No. 2 from harvest Kharif 1958 to harvest Rabi 1963 against payment of Rs. 653.06. and the decree was maintained in appeal that is why the vendees defendants have come up in second appeal to this Court.

The only contention raised by learned counsel for the appellants is that the plaintiff respondent did not fulfil, the qualification on which he bases his claim, on the date of the suit. That qualification is described in sub-clause Fourthly of clause (a) of Sub-section (1) of section 15 of the Punjab Pre-emption Act thus:

(1) The right of pre-emption in respect of agricultural land and village immovable property shall vest--

(a) Where the sale is by a sole owner--

.................

Fourthly, in the tenant who holds under tenancy of the vendor, the land or property sold or a part thereof;.

According to learned counsel for the appellants, the word "holds" means "has actual physical possession of". He submits, therefore that the plaintiff-respondent not being in actual possession of the land on the date of the sale, he (the plaintiff) was not clothed with the qualification detailed in the sub clause above extracted and that the suit was liable to be a dismissed. The contention is not well founded for the simple reasons that there is no justification for interpreting the word "hold" in the restricted sense which it carries according to learned counsel. In the content in which the word has been used it would appear to have wider cannotation so as to bring within the ambit of the sub-clause the case of a tenant, who though out of possession of the land comprised in his tenancy has the right to recover it. In other words, if a person is shown to be tenant in respect of land and his tenancy has not been legally determined, he would be deemed to continue to hold the land in spite of the fact that he has been illegally dispossessed thereform This was the view taken by Sarkaria, J. (who was then a member of this Court) in Balwant Singh & others v. Mehar Singh & others 1967 Cur. L.J. 777, which is a case directly in point. The sub-clause extracted above interpreted by him thus:--

The word ''holds'' is not to be construed in isolation, but is to be read along with the succeeding words ''under tenancy''. No doubt, the worn (''hold'' includes in its ordinary dictionary sense, ''to have, to keep ore''s (sic) to own one''s property, to be in possession or enjoyment of, to occupy, to sustain etc''. But a right of tenancy does net merely mean the act of physical possession. It also includes a bunch of incorporeal rights which are not capable of physical possession. The landlord, his assignees, or the vendees could not, by their act of forcible dispossession of the tenant, put an end to his tenancy", and held:

This wrongful eviction of that tenant is no eviction in the eye of law. The plaintiff-respondent would continue to hold his rights as a tenant, including the right to immediate possession and cultivation of the land, notwithstanding his wrongful ouster by the vendees, who could not be allowed to take advantage of their own wrong. In other words, the plaintiff pre-emptor will be deemed to continue in legal possession of the land, which was comprised in his tenancy under the vendor at the date of the sale, right up to the date of the said suit and the date of the decree of the trail court in his favour.

With the utmost respect I find myself in complete agreement with the above observations made by Sarkarja, J., and find that the plaintiff-respondent "held" the land in dispute under the tenancy of the vendor all though, although be did not enjoy actual physical possession thereof for a considerable intervening period.

In the result the appeal fails and is dismissed but with no order as to costs.